V.J.C. VS. M v. FV-05-000365-16, CAPE MAY COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4587-15T3

V.J.C.,

Plaintiff-Respondent,

v.

M.V.,

Defendant—Appellant.

_________________________________

Submitted July 13, 2017 – Decided July 25, 2017

Before Judges Yannotti and Haas.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket No. FV-05-000365-16.

Stephen J. Buividas, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant M.V. appeals from a final restraining order (FRO)

entered on April 14, 2016, in favor of plaintiff V.J.C. pursuant

to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to

-35. Because the trial judge mistakenly exercised his discretion
in denying defendant's request for a short adjournment of the

April 14 hearing until his attorney could arrive at the courthouse,

we reverse and remand for a new hearing on plaintiff's complaint.

We derive the following facts from the record and the written

amplification of the trial judge's findings of fact and conclusions

of law submitted under Rule 2:5-1(b). At the time plaintiff filed

her complaint for a temporary restraining order (TRO) against

defendant on March 15, 2016, the parties were renting separate

bedrooms1 in the same apartment from a landlord. Plaintiff and

her husband, W.T., lived in one of the bedrooms, plaintiff's

girlfriend lived in another bedroom, and defendant moved into a

third bedroom in the apartment about three weeks prior to March

15.

In her complaint, plaintiff asserted that at approximately

3:35 a.m. on March 14, 2015, everyone in the apartment was "dancing

to reggae music" when defendant "suddenly snapped and began

strangling her by the neck[.]" Plaintiff alleged that "she blacked

out[,]" but remembered "kicking back" at defendant "in self-

defense while being held back by" her husband and her girlfriend.

1
There were four bedrooms in the apartment. The tenants who
rented the bedrooms shared a living room, dining room, kitchen,
bathroom, and laundry.

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 According to the complaint, a hearing on plaintiff's request

for a FRO was scheduled for March 24, 2016. On March 16, 2016,

however, defendant sought an appeal of the TRO because he wanted

to retrieve his personal items from the apartment. The trial

judge scheduled this proceeding for the next day, March 17, 2016.

Defendant told the judge that he had retained an attorney, but the

attorney could not appear on such short notice. Therefore, the

judge reinstated the March 24, 2016 return date for the hearing.

On March 23, 2016, the trial judge granted plaintiff's request

for an adjournment of the hearing "because of a medical issue."

The judge rescheduled the hearing for March 31. However, the

judge was not available on that date and, therefore, he rescheduled

the hearing for April 7, 2016.

On that date, defendant's attorney sent a letter to the trial

judge asking for an adjournment "because of a prior court

commitment." The judge granted this request, and rescheduled the

hearing for April 14, 2016.

On April 12, 2016, plaintiff's attorney sent the trial judge

another letter requesting an adjournment of the April 14 hearing

because he was scheduled to appear at three municipal court matters

on that date. The judge denied the request, but directed his

staff to tell defendant's attorney "that a ready hold would be

considered."

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 Defendant's attorney was able to postpone two of the three

municipal court matters he had on April 14. With regard to the

one remaining matter, he arranged to appear at the Westampton

municipal court at 7:30 a.m. to handle a drunk-driving case for a

client and to then go to the FRO hearing.

On April 14, 2016, defendant's attorney called court staff

and advised that he had gone to the Westampton municipal court at

7:30 a.m. However, the attorney explained that he had been delayed

because the municipal court judge was waiting to receive a

"consolidation order" from the Burlington County Assignment Judge

before proceeding with the attorney's client's case.

Knowing of the attorney's dilemma, the trial judge

nevertheless called the FRO matter at approximately 10:02 a.m.

Defendant's attorney had not yet arrived at the courtroom. The

judge told defendant, who was present in court, that he was going

to proceed with the trial. Defendant asked for permission to call

his attorney's receptionist to let her know. The judge gave

defendant ten minutes to complete the call.

The trial judge started the hearing at 10:13 a.m., taking

testimony from plaintiff, her husband, and defendant. While the

hearing was proceeding, defendant's attorney sent two letters to

the judge updating him of the status of the Westampton matter. In

the first letter, faxed to the judge at 10:22 a.m., the attorney

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stated that he had been detained in the municipal court and

requested an adjournment of the FRO hearing. In the second letter,

sent at 10:44 a.m., defendant's attorney stated that he would be

released by the municipal court judge shortly, and asked that the

FRO matter be "place[d] . . . on ready-hold" until he arrived.

The trial judge stated in his amplified decision that he did

not receive the two letters until after he completed the hearing

at 10:57 a.m. At the conclusion of the hearing, the judge entered

a FRO in favor of plaintiff against defendant, finding that his

actions on the morning of March 14, 2016 constituted assault. The

judge also found that although defendant no longer lived in the

apartment, a FRO was needed because plaintiff and defendant "live

in a small town, a small community. Their paths have crossed

before in a social drinking context and that is likely to happen

again."

In his amplified decision, the trial judge stated that he

denied defendant's attorney's requests for an adjournment or for

a ready-hold until he could get to the courthouse because the

judge had already adjourned the hearing several times; N.J.S.A.

2C:25-29(a) requires that a final hearing be held "within [ten]

days of the filing of a complaint"; and the case was already a

month old.

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 On appeal, defendant contends that the trial court "erred by

denying defendant the opportunity to have his counsel present for

the hearing." We agree.

As the trial judge correctly noted, N.J.S.A. 2C:25-29(a)

states that a final hearing on a party's request for a FRO should

be held within ten days after the plaintiff files a complaint.

However, the Supreme Court has recognized that to the extent this

provision may at times "preclude[] meaningful notice and an

opportunity to defend, [it] must yield to due process

requirements," and, therefore, does not preclude a trial judge

from granting a continuance so that a party's attorney may

represent him or her at the hearing. H.E.S. v. J.C.S., 175 N.J.

309, 323 (2003).

Thus, it is within the trial court's discretion to grant an

adjournment or continuance if either party requests an adjournment

for the purpose of obtaining or consulting with an attorney,

securing witnesses, or other good cause, unless the delay would

create an extreme hardship on the other party, or there had been

an inordinate delay in seeking counsel. Id. at 324. As the

Supreme Court has stated, "[o]ur courts have broad discretion to

reject a request for an adjournment that is ill founded or designed

only to create delay, but they should liberally grant one" when

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necessary in order to safeguard a party's due process rights. J.D

v. M.D.F., 207 N.J. 458, 480 (2011).

Applying these standards, we are constrained to conclude that

the trial judge erred in denying defendant's request for a short

adjournment of the April 14, 2016 hearing to enable his attorney

to get to the courthouse. Prior to calling the case at 10:02

a.m., the judge knew that defendant was represented, his attorney

had gone to a municipal court in another county at 7:30 a.m. to

handle a case for another client, and the resolution of that matter

had been unexpectedly delayed. Defendant's attorney kept the

trial judge apprised of the status of the municipal court matter,

calling the court once, and sending two follow-up letters. Under

these circumstances, we are satisfied that defendant's request was

not "ill founded or designed only to create delay[.]" Ibid.

Even if the trial judge were not inclined to reschedule the

hearing for another day, he could have simply delayed the start

of the hearing for a few hours until defendant's attorney arrived,

and called other cases on the calendar in the interim. Indeed,

the judge stated in his amplified decision that he directed his

staff to present this option to defendant's attorney, and the

attorney specifically asked for a "ready-hold" in the second letter

he sent to the court on April 14, 2016. Clearly, this procedure

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would not have adversely affected the plaintiff. H.E.S., supra,

175 N.J. at 324.

Contrary to the trial judge's finding, defendant was not

solely responsible for the prior scheduling delays. Plaintiff

requested an adjournment of the first hearing date on March 24,

2016, and the judge adjourned the matter again on March 31 due to

his own unavailability. Defendant's attorney then requested an

adjournment of the April 7 hearing. Regardless of who was

responsible for these adjournments, however, "there [was] no risk

to plaintiff" while the matter was pending because "courts are

empowered to continue temporary restraints during the pendency of

an adjournment, thus fully protecting the putative victim while

ensuring that defendant's due process rights are safeguarded as

well." J.D., supra, 207 N.J. at 480.

Thus, we conclude that the trial judge mistakenly exercised

his discretion in denying defendant's request for a short

adjournment of the hearing to enable his attorney to represent him

at the hearing. Therefore, we reverse the April 14, 2016 FRO, and

remand for a new hearing consistent with this opinion. The TRO

shall remain in full force and effect pending further order of the

trial court.

Reversed and remanded. We do not retain jurisdiction.

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